The non-adversarial nature of a social security disability hearing requires an Administrative Law Judge (hereinafter referred to as ALJ ) to fully develop the record. An ALJ has both a statutory and a regulatory duty to fully develop the claimant s complete medical history for at least the twelve month period prior to the date that the claimant filed for disability. Ericksson v. Commissioner of Social Security, 557 F.3d 79, 83 (2d Cir. 2009) see also 42 U.S.C. 423(d)(5)(B). In its regulations, the Social Security Administration states, [b]efore we make a determination that you [the claimant] are not disabled, we will develop your complete medical history for at least the 12 month preceding the months in which you file your application unless there is a reason to believe that development of an earlier period is necessary. 20 C.F.R. 404.1512(d) (emphasis added).
It is especially important to ensure that the record contains the opinions of a treating physician. Under the treating-physician rule, the opinion of a claimant s treating physician regarding the nature and severity of [the claimant s] impairments will be given controlling weight if it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case records. 20 C.F.R. 404.1527(d). As a result, the opinion of the treating physician is an especially important part of the record to be developed by the ALJ. Hence, the Social Security Act provides that the Commissioner shall make every reasonable effort to obtain from the individual s treating physician (or other treating healthcare provider) all medical evidence, including diagnostic tests, necessary in order to properly make [a disability determination], prior to evaluating medical evidence obtained from any other source on a consultative basis. 42 U.S.C. 423 (d)(5)(B).
Generally, the opinions of a treating physician are entitled to more weight than a non-treating source s (a DDS physician) opinion because these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant s] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective evidence alone or from reports of individual examinations, such as consultative examinations. 20 C.F.R. 404.1527(d)(2). Failure to satisfy the treating physician rule constitutes legal error and ordinarily requires remand to the ALJ for consideration of the improperly excluded evidence. Zabala v. Astrue, 595 F.3d 402, 409 (2d. Cir. 2010).
The duty to build the record exists even when the claimant is represented by counsel. Hilsdorf v. Commissioner of Social Security, 724 F.Supp.2d 330 (E.D. NY. 2010) citing Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999). An ALJ must engage in a reasonable effort to obtain the treating source s records. Reasonable effort under the regulations is making the initial request, and, if necessary, one follow-up request within 20 calendar days, to obtain the medical evidence necessary to make a determination. 20 C.F.R. 404.1512(d)(1). The regulations do not require a medical source to be re-contacted when the ALJ know[s] from past experience that the source either cannot or will not provide the necessary findings. 20 C.F.R. 404.1512 (e)(2).
Of most importance to practitioners is the duty of the ALJ to order a consultative evaluation if the information obtained from the claimant s medical source is not sufficient to make a determination. If the records are deficient, the ALJ must seek clarification from the treating source and if the ALJ is unable to obtain said clarification then the Commissioner will then ask the claimant to attend one or more consultative examinations. 20 C.F.R. 404.1512(e)(2).
The cases outlined above provide a safety net if an ALJ does not satisfy their duty to develop the record. However, we, as practitioners, must also satisfy our duty to our clients to make all efforts to ensure that there is a complete record for review. If an claimant s records are not readily available or the claimant is unable to obtain necessary treatment, then a practitioner should request a consultative examination pursuant to 20 C.F.R. 404.1512(e)(2). If the ALJ denies the request, then it is conceivable that the chances for a remand will be very high as the ALJ has failed to fulfill their statutory and regulatory duty to fully develop the record.